Decision on Friday for Kelantan princes
Hafiz YatimPublished: Jan 27, 2010 9:30 AM | Updated: Jan 27, 2010 10:58 AM
Can a court review the action of Kelantan regent Tengku Muhammad Faris Petra in removing his younger brother Tengku Muhammad Fakhry from the Council of Succession?
Can a court review the action of Kelantan regent Tengku Muhammad Faris Petra in removing his younger brother Tengku Muhammad Fakhry from the Council of Succession?
Is the court empowered to interpret the Kelantan constitution on the meaning of ‘His Royal Highness’ (HRH) to include the regent?
These matters will be decided by Kuala Lumpur High Court judge Mohamad Ariff Mohd Yusof on Friday.
The main thrust of the argument is whether the regent's action to remove Tengku Fakhry from the council last September is justiciable or reviewable.
"This threshold should be passed before the court agrees to grant leave (permission to review) or not. The court has to be satisfied on this issue first before deciding on other matters," Justice Mohamad Ariff said today.
Tengku Fakhry’s claim is that the regent does not have these powers, as they are vested with the sultan who appointed him. Sultan Tuanku Ismail Petra is currently incapacitated and, since May last year, has been receiving treatment in Singapore.
Following the vacancy, the council appointed Tengku Faris (right) as the regent in May.
Counsel Cecil Abraham for Tengku Faris submitted that, by the appointment to the regency, Tengku Faris could be termed as HRH.
"As such, the decision taken by the regent is non-justiciable, as the court cannot be allowed to go into the mind of the regent to justify his action. The regent in his capacity has been given the absolute discretion under the Kelantan constitution to appoint or revoke the appointment of any of the council members.
“He is exercising his function as HRH where he is acting on his royal function. Such function is not amenable to this judicial review application.”
Senior Federal Counsel Azizah Nawawi, representing the attorney-general’s chambers, supported the argument that the regent's move is non-justiciable.
Tengku Fakhry filed the application for judicial review on Dec 7 last year after he was removed from the Kelantan Council of Succession on Sept 16. The prince submitted his application 82 days outside the stipulated time.
However, the court is to focus on the issue of justiciability before going on to the delay in filing the application.
‘Power to interpret’
Tengku Fakhry's counsel, K Shanmuga, submitted that the regent's action is reviewable as the court is empowered to interpret the state constitution. He further submitted that Tengku Faris should not be considered as HRH, and as such his action is reviewable.
“If the issue is non-justiciable, it cannot be right for the court to be restrained from reviewing the little areas surrounding the regent's action while the Sultan is still there. The court is empowered to interpret his actions as deemed fit by the constitution.
“The question remains whether he (the regent) is the proper person to exercise the discretionary power to remove a person. We would submit that the power still lies with the sultan.
“The regent's action in removing four other members of the council and replacing them with others was also not right and should be reviewed.”
Shanmuga said his client does not want to see a situation where such action by the council can be considered to be non-justiciable.
Hence, he submitted the court could certainly change and reinterpret regent's actions.
Justice Mohamad Ariff questioned whether this might create a dangerous precedent, to which the counsel replied that it would not.
In his application, Tengku Muhammad Fakhry is also seeking both an order from the court to compel Tengku Muhammad Faris to restore him as a member of the council, and an order of certiorari (judicial review) to quash the appointment of five other members to the council.
Tengku Muhammad Fakhry, who is the third son of the sultan, has named the regent, the secretary of the Council of Succession and the Kelantan government as the first, second and third respondents respectively.
Five other respondents are Hashim Yusoff, Tengku Salwah Sultan Yahya Petra, Sukri Mohamed, Che Mohd Rahim Jusoh and Col Dr Mohammad Razin Kamarulzaman.
Is the court empowered to interpret the Kelantan constitution on the meaning of ‘His Royal Highness’ (HRH) to include the regent?
These matters will be decided by Kuala Lumpur High Court judge Mohamad Ariff Mohd Yusof on Friday.
The main thrust of the argument is whether the regent's action to remove Tengku Fakhry from the council last September is justiciable or reviewable.
"This threshold should be passed before the court agrees to grant leave (permission to review) or not. The court has to be satisfied on this issue first before deciding on other matters," Justice Mohamad Ariff said today.
Tengku Fakhry’s claim is that the regent does not have these powers, as they are vested with the sultan who appointed him. Sultan Tuanku Ismail Petra is currently incapacitated and, since May last year, has been receiving treatment in Singapore.
Following the vacancy, the council appointed Tengku Faris (right) as the regent in May.Counsel Cecil Abraham for Tengku Faris submitted that, by the appointment to the regency, Tengku Faris could be termed as HRH.
"As such, the decision taken by the regent is non-justiciable, as the court cannot be allowed to go into the mind of the regent to justify his action. The regent in his capacity has been given the absolute discretion under the Kelantan constitution to appoint or revoke the appointment of any of the council members.
“He is exercising his function as HRH where he is acting on his royal function. Such function is not amenable to this judicial review application.”
Senior Federal Counsel Azizah Nawawi, representing the attorney-general’s chambers, supported the argument that the regent's move is non-justiciable.
Tengku Fakhry filed the application for judicial review on Dec 7 last year after he was removed from the Kelantan Council of Succession on Sept 16. The prince submitted his application 82 days outside the stipulated time.
However, the court is to focus on the issue of justiciability before going on to the delay in filing the application.
‘Power to interpret’
Tengku Fakhry's counsel, K Shanmuga, submitted that the regent's action is reviewable as the court is empowered to interpret the state constitution. He further submitted that Tengku Faris should not be considered as HRH, and as such his action is reviewable.
“If the issue is non-justiciable, it cannot be right for the court to be restrained from reviewing the little areas surrounding the regent's action while the Sultan is still there. The court is empowered to interpret his actions as deemed fit by the constitution.“The question remains whether he (the regent) is the proper person to exercise the discretionary power to remove a person. We would submit that the power still lies with the sultan.
“The regent's action in removing four other members of the council and replacing them with others was also not right and should be reviewed.”
Shanmuga said his client does not want to see a situation where such action by the council can be considered to be non-justiciable.
Hence, he submitted the court could certainly change and reinterpret regent's actions.Justice Mohamad Ariff questioned whether this might create a dangerous precedent, to which the counsel replied that it would not.
In his application, Tengku Muhammad Fakhry is also seeking both an order from the court to compel Tengku Muhammad Faris to restore him as a member of the council, and an order of certiorari (judicial review) to quash the appointment of five other members to the council.
Tengku Muhammad Fakhry, who is the third son of the sultan, has named the regent, the secretary of the Council of Succession and the Kelantan government as the first, second and third respondents respectively.
Five other respondents are Hashim Yusoff, Tengku Salwah Sultan Yahya Petra, Sukri Mohamed, Che Mohd Rahim Jusoh and Col Dr Mohammad Razin Kamarulzaman.
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